The Supreme Court of Canada has got some Canadian dons on the twitter-sphere up in arms after denying leave to appeal in Basilian Fathers of Toronto v. Roderick MacLeod somewhat in conjunction with the release of its 2019 statistics. The central issue on appeal was whether the instructions to the jury regarding assessment of damages for loss of income was incorrect. The Ontario Court of Appeal maintained the trial judge’s and the jury’s decision. The question of instructions to a jury for assessment of damages is, if I read Twitter aright, the central issue appealed to the Supreme Court of Canada.
The Court’s refusal to hear the case comes at a time when the Court takes fewer cases, but hears more cases en banc — as a full panel of nine judges. In 2019, for example, the Court heard 69 appeals and decided 72 cases. 8 cases per judge. The Federal Court of Appeal decided 1130 appeals in 2019. 66 cases per judge. British Columbia’s Court of Appeal decided 767 appeals; about 33 cases per judge. The Supreme Court’s statistics pale in comparison, yet it has the prerogative to hear cases in smaller panels, which allows the Court to hear more cases.
This note takes issue with the Court’s refusal to hear more cases. I take a historical approach by examining the case of Sutton’s Hospital, which was heard by the English Exchequer Chamber. The case gives us a beautiful note on which to consider the Supreme Court’s function in Canada. I will discuss this quote in relation to the historical underpinnings of Canadian courts of appeal. These considerations suggest that the Court misapprehends its role: the Court can focus on allowing its judges to decide cases in small panels while reserving the full bench for the most difficult cases.
The Exchequer Chamber is the centre of my argument; its bears some description.
Exchequer Chamber was a conference of judges assembled to decide a tough question with a single voice. Exchequer Chamber was abolished under the Judicature Act, 1873. By 1873, the Court served as an appellate jurisdiction alongside the House of Lords and Judicial Committee of the Privy Council. The Chamber’s functions were assigned to the English Court of Appeal, which already gives you a sense of its import at English Law. The Chamber’s history begins when common law, equity, or revenue judges in Westminster’s superior courts began referring cases to the common law judges, the Chancellor’s court, and the barons of the Exchequer Court. All of England’s superior court judges came together in a single sitting to hear hard cases. The Crown could also refer cases to Exchequer Chamber.
Sutton’s Hospital is a 1612 case reported by Sir Edward Coke. The case was in trespass, but its real object was to determine who was in rightful possession of a parcel of land bequeathed to charity by John Sutton. Coke heard the case in King’s Bench with a jury. The jury, however, could not decide the case because questions of law had gone unanswered. Coke removed the case to Exchequer Chamber, of which he was a part.
[For a hilarious account of the case, see the Wikipedia page, where the author has misapprehended which court finally decided the issue. When I figure out how to edit Wikipedia pages, I will deal with this problem.]
The stirring point in Coke’s report, for present purposes, is found in the final lines:
And all the Judges who argued in this case (except the two aforesaid) concluded against the plaintiff, and those two mutahl opinione assented also to the judgment; so that by the assent of all the said Judges nullo contradicente judgment was given against the plaintiff. And the Lord Ellesmere, Lord Chancellor of England, hearing all the arguments at the Bar and Bench agreed also in opinion with the Judges: and so this great work of charity has tasted of such charity which ought to be in Judges, which is declared in the statute of West. 1. cap. ult. Summa charitas est facere Justitiam omnibus personis omni tempore quando necesse fiterit.(1612) 10 Co Rep 23a, pp. 33b-34a.
That Latin quote closing the judgment means ‘the greatest charity is doing justice for all people whenever necessary’. Its import cannot be understated in modern law. In feudal terms, courts are expressions of royal charity. The Exchequer Chamber was an enhanced example of this goodwill. Its judges assembled only for the most difficult and important cases, where precedents needed to be set with reference to all types of law (common law, equity, revenue, prerogative, and statute).
Canada never had an Exchequer Chamber. Pre-Confederation lawmen did, however, have the Chamber in mind when considering the creation of colonial courts of appeal. The charitable principle underpinning Exchequer Chamber (and all judicial opinions) thus had a path into Canadian law.
The Ontario Court of Appeal appears to have been created with the Exchequer Chamber in mind. A member of the Kingston Bar invoked the Chamber’s appellate function in an 1845 public letter:
we secure all the advantages of an indigenous Court of Appeal, by joining the two Common Law Courts and the one Equity Court together, under the name, if that is worth anything, of the Exchequer Chamber.Early Canadiana Online, no. 52261
William Hume Blake, a successful lawyer and later a judge, similarly commented in a 1845 open letter to Robert Baldwin:
without impairing the efficiency of the common law jurisdiction, or rendering the primary judgments there justly liable to cavil; we should add to our Equity decrees all that additional weight, which they would receive in consequence of the judge presiding there (who might, perhaps, with propriety be termed the Chancellor) being assisted by two associates. While the assemblage of these several judges, in a court, to be termed the Court of Exchequer Chamber, would furnish us with an efficient appellate jurisdiction, with the Province, in which every question of difficulty might be submitted to the decision of six new judges.Early Canadiana Online, no. 21983
A court of appeal for the Province of Canada was needed to consolidate judgments from various courts into a single legal system only properly considered on appeal, like cases in Exchequer Chamber.
A final commentator, Chief Justice William Johnstone Ritchie (later Chief Justice of Canada), commented on the failed establishment of our Supreme Court under John A. MacDonald’s first government:
No doubt in framing the appellate portion [of the proposed Bill], the Judicial Committee of the Privy Council and the Court of Exchequer Chamber were in the draughtman’s mind; and I also would adopt these two Courts as the basis.Early Canadiana Online, no. 10760
Eminent Canadian lawyers and judges thus had the Exchequer Chamber in view during discussions about appellate jurisdiction. Their knowledge of Sutton’s Case, however, cannot be assumed.
We instead see the latin principle preserved by Edward Coke at play in these nineteenth-century legal comments. A Court of Appeal is less concerned with the facts. Its true purpose is ascertaining which laws to apply to facts determined elsewhere. In this way, the Crown’s justice is dispensed with reference to all law.
The Exchequer Court’s obvious appeal is that it encompasses the superior court jurisdictions of the realm. In so doing, the Crown’s eminent legal minds are brought to bear on a single issue. The chances of the legally correct result — whether that be in law, equity, revenue, prerogative, or statute — are increased. More minds diverted to a debate brings greater clarity, thus tending toward the greatest charity.
The tenor of the principle in Canada differs somewhat from the seventeenth-century English reality. If we cast far enough back into history, England was indeed a federation of principalities united under William the Conqueror. Its county system evolved into a more centralized government under the Crown’s courts.
Canada’s judicial system inherited the county model but was from the start conditioned by colonial realities. Counties mattered for local justice, but British North American colonies were dependent upon the London executive and its governors. No courts of appeal existed in the early days of British rule. These courts were instead considered in the lead-up to responsible government, when the colonies had grown in size and complexity.
Canada’s Supreme Court is a further example in this narrative. The Court sits over all colonies united under the federal Crown. Its early influence was questionable, but its authority now cannot be disputed. The law issued from each provincial and territorial court of appeal is subject to review.
The review jurisdiction is a necessary charity bestowed on each province by a federal Crown interested in a uniform judicial system. The nine judges created by the Supreme Court Act individually possess the powers of a superior court judge. Five judges together may decide appeals: the Court must only delegate five judges to any case. This legislative baseline is supplemented by the ability to draw ad hoc judges from the Federal Court of Appeal, the Federal Court, the Tax Court, or provincial superior courts. Parliament gives the Court all the tools it needs to hear more cases.
Parliament’s patent purpose in these tools is to allow the Court to hear all appeals where questions of law or justice need to be settled. (Remember the the Supreme Court is a court of law and equity.) The tools to dispense judicial charity exist.
For all this, however, the Court takes on fewer cases and sits more often as a panel of nine judges. The controversy here is that the Court does not behave charitably by concentrating its resources. Questions of law need not always have nine legal minds assigned to them. More discretion does greater justice because, as Lord Coke reiterates, the greatest charity is providing justice to all when it is necessary. The Supreme Court (and its Chief Justice, who assigns cases) must decide on each leave to appeal whether the case sets precedent that could benefit the Realm. The Court must also ask itself what curial interest exists for the parties.
These concerns are no doubt on judges’ minds, yet our apex tribunal hears very few cases per judge. The importance of charity must be emphasized by the profession and our judges if our judicial system is to remain connected to litigants’ curial interests.